Creditors often think that an involuntary bankruptcy petition is a great bargaining chip when faced with a recalcitrant debtor. However, the actual filing of an involuntary bankruptcy petition (when that petition is filed in “bad faith”) confers a considerable risk to the petitioning creditors. Recently, the United States Court of Appeals for the Third Circuit issued an opinion that re-emphasizes just how risky bad faith involuntary petitions can be for creditors.

Although this case has extensive procedural history the basic facts and procedural history are as follows: Maury Rosenberg established and owned a group of companies and partnerships operating as National Medical Imaging (“NMI”). NMI entered into equipment leases with U.S. Bank’s predecessors-in-interest. After NMI defaulted, U.S. Bank sued NMI and Rosenberg, which eventually settled (resulting in modified lease agreements under which NMI would continue to lease the equipment). As part of the settlement, Rosenberg would be personally liable if NMI again defaulted, which NMI did after twenty-one months.

After the default, entities related to U.S. Bank filed an involuntary bankruptcy petition against Rosenberg in the Eastern District of Pennsylvania, which was transferred to the Southern District of Florida (where Rosenberg lived). The involuntary bankruptcy petition was subsequently dismissed. After the dismissal, Rosenberg filed an adversary proceeding against U.S. Bank under 11 U.S.C. § 303(i) seeking the recovery of costs, attorney’s fees, and damages resulting from a bad faith filing of an involuntary bankruptcy petition. That adversary proceeding was removed to the District Court, and tried before a jury. The jury awarded Rosenberg over $6 million, including $5 million in punitive damages, which are only warranted when the evidence shows that a defendant acted “with intentional malice” or that its conduct was “particularly egregious”. After an appeal to the Eleventh Circuit (which reinstated the jury’s punitive damage award that had been vacated by the District Court in Florida), a final judgment of $6,120,000 (including the $5 million punitive damage award) was entered against U.S. Bank and its related entities for filing a bad faith involuntary petition against Rosenberg (the “Florida Judgment”).

At the same time, U.S. Bank proceeded with an action in the Eastern District of Pennsylvania for breach of contract against Rosenberg. The District Court found in favor of U.S. Bank and awarded U.S. Bank approximately $6.5 million in damages, fees, and costs (the “Pennsylvania Judgment”).

Thereafter, U.S. Bank filed a motion with the Eastern District of Pennsylvania requesting that the District Court offset the Florida Judgment against the Pennsylvania Judgment. If such motion were granted, U.S. Bank would owe Rosenberg nothing and, importantly, would not have been required to come out of pocket for the Florida Judgment. Reasoning that (i) the judgments lacked mutuality (because, among other things, the parties involved were not identical) and (ii) “equitable principles embodied in § 303 of the United States Bankruptcy Code preclude setoff”, the District Court, exercising its discretion consistent with Pennsylvania state law, denied the motion. U.S. Bank appealed.

Determining that it need not reach the question of whether there was a lack of mutuality, the Third Circuit determined that the District Court did not abuse its discretion in denying U.S. Bank’s motion for mutual judgment satisfaction based on equitable principles. Rosenberg, 2018 WL 3640987 at *2. Accordingly, the Third Circuit affirmed the District Court. In so doing, the Third Circuit cited with approval several other courts that have concluded that § 303(i)’s equitable purpose would be frustrated if bad faith filers were allowed to offset a § 303(i) judgment. CitingIn re Macke Int’l Trade, Inc., 370 B.R. 236, 255 (B.A.P. 9th Cir. 2007); In re Diloreto, 442 B.R. 373, 377 (E.D. Pa. 2010); In re Forever Green Athletic Fields, Inc., Bankr. No. 12-13888-MDC, 2017 WL 1753104, at *7 (Bankr. E.D. Pa. May 4, 2017); In re K.P. Enter., 135 B.R. 174, 185-86 (Bankr. D. Me. 1992); In re Schiliro, 72 B.R. 147, 149 (Bankr. E.D. Pa. 1987).

Setoff rights are an important remedy for creditors especially when a debtor becomes insolvent or files for bankruptcy. Frequently, it may be the only way a creditor can collect on such debt. However, under Pennsylvania law, “[s]etoff is an equitable right to be permitted solely within the sound discretion of the court.” Foster v. Mut. Fire, Marine & Inland Ins. Co., 531 Pa. 598, 614 A.2d 1086, 1095 (Pa. 1992). Therefore, courts may weigh whether setoff is equitable or if other equitable concerns are tantamount. Sanctions under § 303(i) seek to deter the improper filing of involuntary petitions. These sanctions play “a key role in deterring bad faith filing and remedying the negative effects of improperly-filed petitions.” Rosenberg, 2018 WL 3640987 at *2. The Third Circuit’s decision recognizes that permitting U.S. Bank to set off the § 303(i) award would severely undermine § 303(i)’s equitable purpose. Thus, it held that in light of U.S. Bank’s conduct and the equitable principles underlying § 303(i), the District Court did not abuse its discretion in denying U.S. Bank the equitable remedy of setoff.

This case is but another warning to creditors considering the use of an involuntary petition for a bad faith purpose. In this case, U.S. Bank’s decision to commence an involuntary petition exposed it to a substantial award that made a bad situation worse – it must now write a large check and only hope that it can collect against a judgment debtor that may be judgment proof. This is the quintessential lose/lose situation for any creditor.

The reality of a bankruptcy proceeding is that creditors often receive less than a full distribution on their claims, forcing them to absorb such losses or look for new avenues to make themselves whole. The “bankruptcy haircut” is more often the case for general unsecured creditors and occurs less often for secured creditors (when they are not undersecured) and lessors (when they are not underwater on their lease). Sometimes creditors have the luxury of looking to guarantors to mitigate their losses when the guarantors are not insolvent or otherwise judgment proof. Otherwise, creditors are forced to find additional means to mitigate the haircut they received on their bankruptcy claims. This was almost the case in Sierra Equipment, Inc. v. Lexington Insurance Co. where a heavy equipment lessor attempted to utilize the Texas Equitable Lien Doctrine to mitigate its loss by establishing standing to bring suit against a debtor’s insurance carrier post-confirmation.

In the context of an equipment lessee/lessor relationship, the Texas Equitable Lien Doctrine creates a right in favor of a lessor to pursue proceeds from an insurance policy covering its property in certain circumstances. The doctrine can be used to compel the turnover of insurance proceeds in the hands of a lessee policyholder when the lessor is entitled to such proceeds. The same doctrine can also operate as a procedural exception to the general rule that a non-party to a contract does not have standing to sue under such contract. That is, the Texas Equitable Lien Doctrine grants a lessor standing to pursue a recovery directly from a lessee’s insurance carrier, without being a party to the insurance contract, if the lease agreement contains a loss payable clause in favor of the lessor. While the doctrine does not create a new cause of action against an insurance carrier in this instance, it does provide a procedural mechanism for the lessor to pursue insurance proceeds in the place of the lessee as the policyholder. Courts have interpreted the loss payable clause requirement of the doctrine to be satisfied by either specifically obligating the lessee to include the lessor as an additional insured or making clear that the lessee is obtaining the insurance “for the benefit of” the lessor. Although the requirement that a lessor be named as an additional insured seems somewhat cut and dry, the alternative requirement that insurance be “for the benefit of” a lessor is somewhat less clear. It was this “for the benefit of” requirement that the Fifth Circuit was asked to weigh in on in Sierra Equipment.

In Sierra Equipment, an equipment lessor, Sierra, entered into an agreement to lease heavy equipment to LWL Management worth several million dollars. Among other things, the lease agreement provided that LWL would keep the leased equipment insured under terms satisfactory to Sierra and would deliver a copy of such insurance policy to Sierra. Notably, the lease agreement did not explicitly require that Sierra be listed as an additional insured nor did it explicitly state that the insurance was to be obtained for Sierra’s benefit. In accordance with the lease agreement, LWL obtained insurance on Sierra’s equipment from Lexington Insurance Company.

About a year after entering into the lease agreement, LWL and certain of its affiliates filed Chapter 11 in the United States Bankruptcy Court for the Northern District of Texas. Sierra was very active throughout the bankruptcy case, which included conducting an inventory of the equipment it leased to LWL. After conducting the inventory, Sierra determined that much of its equipment had been lost, damaged, or destroyed. Sierra brought multiple motions for an administrative claim for such damages but ultimately settled with the Debtors for allowed administrative and general unsecured claims. When Sierra took a larger haircut on the distributions on its claims than it anticipated, it began looking for other sources from which to recover.

After some diligence, Sierra discovered the insurance policy LWL obtained from Lexington covering Sierra’s equipment. Thereafter, Sierra contacted Lexington about making a claim under LWL’s policy. When Sierra was unsuccessful in making a claim, it filed a declaratory judgment action in Texas state court. Lexington timely removed the state court action to the United States District Court for the Northern District of Texas and subsequently filed a number of dispositive motions, alleging a variety of procedural maladies. In one of those motions, Lexington argued that Sierra lacked standing to file the declaratory judgment action because it was not a named insured and was not a party to the insurance policy. Sierra countered that the terms of its lease agreement with LWL satisfied the requirements of the Texas Equitable Lien Doctrine and thereby conferred standing upon it to bring suit. More particularly, Sierra argued that the substantial insurance requirements contained in the lease agreement implicitly made clear that LWL was obtaining insurance “for the benefit of” Sierra. While the District Court was not convinced that the Texas Equitable Lien Doctrine applied to the lessee/lessor context, it held that if the doctrine did apply, the terms of the lease agreement and the insurance policy were insufficient to allow Sierra standing to bring suit against Lexington. Sierra appealed.

The Fifth Circuit affirmed the District Court. As an initial matter, the Fifth Circuit clarified that Texas courts do recognize the applicability of the Texas Equitable Lien Doctrine to the lessor/lessee relationship. The Fifth Circuit then turned to determine whether or not Sierra satisfied the requirements of the doctrine. Here, there was no debate that the lease agreement did not explicitly require that Sierra be included as an additional insured, so the Fifth Circuit focused its analysis on whether or not LWL obtained the insurance policy “for the benefit of” Sierra. In examining the “for the benefit of” requirement, the Fifth Circuit looked to the underlying purpose of the doctrine. The Fifth Circuit found that the purpose of the doctrine was limited to treating what should have been done under the express terms of the agreement, as done. Said differently, where an agreement between two parties expressly lays out a lessee’s obligation to name the lessor as an additional insured or expressly states that the insurance requirements of the lease agreement were for the benefit of the lessor, the Texas Equitable Lien Doctrine confers standing on the lessor as if the lessee had complied with the lease agreement. Accordingly, the Fifth Circuit dismissed Sierra’s argument that the lease agreement’s substantial requirements regarding insurance implicitly made clear that the insurance policy was obtained for Sierra’s benefit and found the absence of explicit language creating a loss payable clause to be determinative of the issue.

Although the Fifth Circuit ultimately ruled against Sierra, its holding provides some comfort for other prudent equipment lessors. By clarifying the ambiguous language of “for the benefit of” requirement of the doctrine, the Fifth Circuit provided a road map for lessors to protect their rights and preserve every opportunity they can for a recovery in the event a deal goes south. That is, the Fifth Circuit made clear that in order to preserve rights to utilize the benefits of the Texas Equitable Lien Doctrine, the cautious lessor should explicitly require in its lease agreements that the lessor be listed as an additional insured or otherwise explicitly state that the insurance the lessee is obligated to obtain, is obtained for the benefit of the lessor.

The Bankruptcy Code gives a bankruptcy trustee, or the debtor in possession, the power to “avoid” certain transfers made by the debtor at various times before filing for bankruptcy relief. Congress provided a number of limits on these significant avoidance powers, whether within the sections granting the powers themselves (e.g., in Section 547(c), which sets forth a number of transfers that a trustee or debtor may not avoid, and Section 547(b)’s statutory limitation with respect to potentially preferential transfers to non-insiders made beyond the 90 days preceding the bankruptcy filing) or in other sections of the Bankruptcy Code, such as Section 546, which is aptly entitled “Limitations on Avoiding Powers.” Subsection “(e)” of Section 546, which limits a trustee’s avoiding powers with regard to certain securities related transactions, has been the subject of noteworthy debate.

The implementation of Section 546(e)’s “safe harbor” provision was the central issue in Merit Management Group, LP v. FTI Consulting, Inc. In Merit, a racetrack casino, Valley View Downs, acquired another racetrack casino in Pennsylvania through a stock purchase transaction. In order to complete the transaction, Valley View arranged for a portion of the purchase price to be wired into the account of a third party escrow agent. Following closing, the third party escrow agent distributed funds as provided for by the parties’ purchase agreement, including to one of the seller’s shareholders, Merit Management Group. However, despite the foregoing stock acquisition, Valley View and its parent company ultimately filed a Chapter 11 bankruptcy.

Following confirmation of the plan of reorganization in Valley View and its parent’s bankruptcy, FTI Consulting, as trustee of the litigation trust, attempted to avoid those payments made to Merit by the third party escrow agent. FTI argued that such payments were constructively fraudulent. In response to FTI, Merit argued that because the payment it received was transferred to it from a financial institution, acting as an intermediary escrow agent, the payment was protected under the safe harbor in Section 546(e).

Courts have interpreted the safe harbor’s reach differently, with a majority of Circuit Courts of Appeal—the Second, Third, Sixth, Eighth, and Tenth Circuits—holding that the presence of a qualifying financial institution in a securities related transaction, even if acting as an intermediary or a conduit, is sufficient to trigger the protections of Section 546(e) for the entire transaction. A minority of Circuits that have addressed this issue—the Seventh and Eleventh Circuits—have held the opposite: that the mere presence of a qualifying financial institution in a securities related transaction, if only acting as a conduit or intermediary, is insufficient to trigger the safe harbor of Section 546(e). The Supreme Court granted certiorari from the Seventh Circuit in Merit and resolved this split of authority.

The Supreme Court sided with the minority of Circuits and affirmed the Seventh Circuit. In a unanimous decision, the Supreme Court held “that the only relevant transfer for the purposes of the [Section 546(e)] safe harbor is the transfer that the trustee seeks to avoid.” Said differently, the relevant transfer for the purposes of Section 546(e)’s safe harbor is the overarching transfer a trustee identifies for avoidance, rather than the intervening pass-through transfers that are part and parcel of that overarching transfer.

In reaching this conclusion, the Supreme Court began its analysis by looking at the statutory scheme of a trustee’s avoidance powers and the statutory history of Section 546, before turning to a textual analysis of the section. There, the Court emphasized that the text of Section 546(e) creates an exception to a transfer that would otherwise be avoidable. It reasoned that the “notwithstanding” clause, which lists each of the sections containing a trustee’s avoiding powers wholesale, signals that the safe harbor is intended to apply to the entirety of a trustee’s avoiding powers under such sections. Thus, the Court concluded, the starting point for determining the scope of the safe harbor is the trustee’s substantive avoiding powers and, “consequently, the transfer a trustee seeks to avoid as an exercise of those powers.”

The Supreme Court went on to identify other portions of the text that supported its analysis, such as the exception contained within the safe harbor which prevents its application to actually fraudulent transfers. The Court concluded that such an exception further signals Congress’ intent that the safe harbor applies to the overarching transfer, rather than a mere component part, by explicitly identifying an entire type of transfer that is outside the scope of the safe harbor. Memorably, the Supreme Court concluded its textual interpretation of Section 546(e) by stating, “Not a transfer that involves. Not at transfer that comprises. But a transfer that is a securities transaction covered under §546(e).”

The opinion concludes by discussing the role of Section 546(e) within the statutory structure of the Bankruptcy Code as a whole and then addressing and dismissing Merit’s counter arguments.

To be sure, given that the Supreme Court sided with the minority of Courts, those circuits which were abrogated by Merit will have to adjust their case law going forward. However, legal scholars are already speculating on the effect of the holding in Merit on leveraged-buyout transactions in bankruptcy and suggesting work-arounds. Accordingly, the long term effects of Merit remain to be seen.